77 Tenn. 173 | Tenn. | 1882
delivered the opinion of the court.
On September 2, 1870, the defendant, H. P. Bar-bee, filed his bill against James £L Leigh, for a partnership account between them, and claimed a balance due to him of about $180. In the progress of the cause, Barbee sued out an attachment against the estate of Leigh,. which was levied “ on the goods, wares and merchandise now in a store house, known as the store house of Leigh and Phelps, in the town of Gleason, as the property of the defendant, James H. Leigh.” Leigh replevied the goods by giving a bond,
No appeal was taken from this decree, and the same remains in full force. On March 20, 1873, the sureties of Leigh, on his replevy bond, against whom the. judgment was rendered on the bond, filed this bill to enjoin the execution of the judgment. The substance of the bill is, that the property levied upon was the property .of the firm of Leigh & Phelps, not of Leigh alone; that the interest of Leigh was only what would remain after paying the partnership debts; and that nothing would remain. There is evidence tending to show these facts, but the business continued to be conducted by Leigh for a year after the levy, and then his stock of goods on hand was sent by him to Arkansas.
The chancellor’s decree on the' original bill will bo revei’sed, and the bill dismissed with costs. Rut the •appellant, Barbee, will pay the costs of his cross-bill, as ordered, by the chancellor, and the. costs of so much of the transcript of this court as consists of the record of the suit of Barbee v. Leigh.